PLAN OF REORGANIZATION AND AGREEMENT OF MERGER DATED AS OF MARCH 8, 2007
EXHIBIT
2.1
DATED
AS OF MARCH 8, 2007
PLAN
OF REORGANIZATION
AND
AGREEMENT
OF MERGER
THIS
PLAN OF REORGANIZATION AND AGREEMENT OF MERGER (“Agreement”) is made
and entered into as of the 8th day of March, 2007, among Bank of Marin (“Bank”),
Bank of Marin Bancorp (“Holding Company”) and Bank of Marin Merger Corp.
(“Subsidiary”).
RECITALS
A. Bank
is a banking corporation duly organized, validly existing and doing business
in
good standing under the laws of the State of California, and has authorized
capital of 15,000,000 shares of no par value Common Stock of which, at the
date
hereof, there are 5,464,855 shares issued and 5,000,000 shares of no par
value
Preferred Stock of which, at the date hereof, there are no shares issued
and
outstanding; and
B. Subsidiary
is a corporation duly organized, validly existing and doing business in good
standing under the laws of the State of California, and has 100 shares of
common
stock issued and outstanding which are owned by the Holding
Company.
C. Holding
Company is a corporation duly organized, validly existing and doing business
in
good standing under the laws of the State of California, and has authorized
capital of 15,000,000 shares of no par value Common Stock of which, there
are
100 shares of Common Stock issued and outstanding, and 5,000,000 shares of
no
par value Preferred Stock of which, as of the date hereof, there are no shares
issued or outstanding; and
D. A
majority of the entire Boards of Directors of Bank, Holding Company, and
Subsidiary, have approved this Agreement and authorized its
execution.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein set forth and for the purpose of prescribing the terms
and
conditions of the merger of Subsidiary with Bank, the parties hereto agree
as
follows:
Article
I
Terms
of Merger
1.1. Merger.
On the Effective Date, as defined in Article 3, Subsidiary shall be merged
with
and into Bank (“Merger”), which shall be the surviving corporation (for purposes
of this Agreement, the combined Bank and the Subsidiary after the Effective
Date
of the Merger are sometimes referred to as the “Surviving Bank”) and shall be a
subsidiary of Holding Company. Surviving Bank's name shall be “Bank of Marin.”
The Merger shall be in accordance with the provisions of California state
law.
The business of the Surviving Bank shall be that of a California state banking
corporation. This business shall be conducted by the Surviving Bank at its
main
office to be located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and
at
the legally established offices of the Bank prior to the Merger.
1.2. Articles
of Incorporation and Bylaws. The Articles of Incorporation of Bank as
in effect immediately prior to the Effective Date shall, at and after the
Effective Date, be the Articles of Incorporation of the Surviving Bank, without
change or amendment (until amended or repealed as provided by law) and the
Bylaws of Bank as in effect immediately prior to the Effective Date shall,
at
and after the Effective Date, be the Bylaws of the Surviving Bank, without
change or amendment (until amended or repealed as provided by law).
1.3. Officers
and Directors. On and after the Effective Date, the directors and
officers of Bank immediately prior to the Effective Date shall be the directors
and officers of the Surviving Bank. Directors of the Surviving Bank shall
serve
until the next annual meeting of shareholders of the Surviving Bank and until
such time as their successors are elected and have qualified.
1.4. Rights
and Privileges. On and after the Effective Date, all the rights,
privileges, powers, franchises, facilities and immunities, as well as all
the
properties, real, personal and mixed, tangible and intangible, of Bank shall
continue unaffected and unimpaired by the Merger. On and after the
Effective Date, the Surviving Bank shall without further transfer, possess
all
of the rights, privileges, powers, franchises, facilities, and immunities,
as
well as all the properties, real, personal and mixed, tangible and intangible,
of Bank and Subsidiary.
1.5. Assumption
of Liabilities. On and after the Effective Date, the
Surviving Bank shall succeed to and be liable for all debts, liabilities
and
other obligations, known or unknown, contingent or otherwise, of Subsidiary
and
Bank, of any nature whatsoever, existing on the Effective Date or attributable
to the operations of Subsidiary or Bank as though the Surviving Bank had
incurred them.
1.6. Further
Cooperation. If at any time after the Effective Date any further
conveyance, assignment or other documents, or any further action is necessary
or
desirable to further effectuate the transactions set forth herein or
contemplated hereby, the officers and directors of the parties hereto shall
execute and deliver, or cause to be executed and delivered, all such documents
as may be reasonably required to effectuate such transactions.
1.7. Offices.
Upon the Effective Date, all offices of Bank shall be offices of the Surviving
Bank and the principal office of Bank shall be the principal office of the
Surviving Bank.
Article
II
Capital
Stock
2.1 Stock
of Subsidiary. The shares of stock of Subsidiary issued and outstanding
immediately prior to the Effective Date shall be converted into a number
of
shares of Common Stock of Surviving Bank equal to the number of shares of
Common
Stock of the Bank outstanding immediately prior to the Effective
Date.
2.2. Stock
of Bank. Subject to the provisions of Section 2.6 hereof, each share of
Common Stock of Bank issued and outstanding immediately prior to the Effective
Date shall be converted into one share of Common Stock of Holding
Company.
2.3. Exchange
of Holding Company Stock for Bank Stock. On the Effective Date, each
Bank shareholder of record at that date shall be entitled to receive one
share
of Common Stock of Holding Company for each share of Common Stock of Bank
held
on that date and Holding Company shall issue that number of shares which
shareholders are entitled to receive. On and after the Effective Date,
certificates representing the issued and outstanding Common Stock of Bank
shall
thereafter represent shares of Common Stock of Holding Company, and such
certificates may be exchanged by the holders thereof, after the Merger becomes
effective, for new certificates for the appropriate number of shares bearing
the
name of Holding Company. On and after the Effective Date, there shall be
no
registration of transfers on the stock transfer books of Surviving Bank of
shares of Bank which were outstanding immediately prior to the Effective
Date.
2.4. Rights
to Stock Options and Awards. On and after the Effective Date, all
outstanding options to purchase shares of Common Stock of Bank and all awards,
respectively, granted pursuant to Bank’s 1990 and 1999 Stock Option Plans and
the 2007 Equity Plan shall be assumed by and shall be deemed options to purchase
shares of Common Stock of Holding Company or awards relating to the Common
Stock
of Holding Company, as the case may be, on the same terms and conditions,
subject to the requirements of the Securities Act of 1933, as amended, and
the
California Blue Sky Law, and for the same number of shares as have been agreed
upon and set forth in agreements entered into pursuant to such
plans.
2.5. Employee
Benefit Plans Relating to Stock. On and after the Effective Date, each
share of Common Stock of Bank held in trust or otherwise in connection with
any
and all of Bank's employee benefit plans, including the Bank of Marin Employee
Stock Ownership and Savings Plan shall be converted into one share of Common
Stock of Holding Company. The Bank of Marin Employee Stock
Ownership and Savings Plan shall remain a plan of the Bank and shall not
be
assumed by the Holding Company. The 1999 Stock Option Plan, the 2007
Equity Plan, the 2006 Employee Stock Purchase Plan and the Director Fee Plan,
and the Bank’s obligations thereunder, shall be assumed by the Holding Company
at the Effective Date and shall be subject to the same terms and conditions
as
existed prior to the Effective Date, subject to the requirements or the
Securities Act of 1933, as amended, and the California Blue Sky
Law.
2.6. Dissenting
Shares. Holders of shares of Bank Common Stock shall have dissenters’
rights in connection with the Merger pursuant to the provisions
of Chapter 13 of
the California General Corporation Law.
Article
III
Effective
Date
This
Agreement shall become effective at the date and time that this Agreement
is
filed with the California Secretary of State. Such date shall be the
“Effective Date” of the Merger.
Article
IV
Approvals
4.1. Shareholder
Approval. This Agreement shall be submitted to the shareholders of
Bank, Subsidiary and Holding Company for approval and ratification, as provided
by the applicable laws of the State of California and in accordance with
other
applicable law.
4.2 Regulatory
Approvals. The parties hereto agree that each shall proceed to and
cooperate fully to obtain the regulatory approvals and consents and to satisfy
the requirements prescribed by applicable law and/or regulation or which
are
otherwise necessary or desirable in connection with the completion of the
Merger
as outlined herein. Such regulatory approvals, consents and requirements
shall
include, but shall not be limited to the approvals and consents set forth
in
Article V herein.
Article
V
ConditionsPrecedent
This
Agreement will not be submitted to the California Secretary of State for
filing
until all of the following conditions have been satisfied or
waived:
(a) Approval
and ratification of this Agreement by the holders of a majority of the
outstanding shares of Bank, Subsidiary and Holding Company as required by
applicable law;
(b) Receipt
of all other approvals and consents, and satisfaction of all other requirements
as are prescribed by applicable law in connection with the Merger including,
but
not limited to, approval of the FDIC pursuant to 12 U.S.C. 1828(c), approval
of
the California Department of Financial Institutions for the acquisition of
the
Bank by the Holding Company pursuant to Financial Code Section 700 et. seq.,
the
granting of an order of exemption in connection with the offer, sale and
issuance of shares by the California Department of Financial Institutions
pursuant to Financial Code Section 697 and notice to the Board of Governors
of
the Federal Reserve System pursuant to the Bank Holding Company Act of 1956,
as
amended and Section 225.17 of Regulation Y promulgated pursuant
thereto;
(c) Issuance
(unless the same is waived by the parties hereto) of a favorable opinion,
in
form and substance satisfactory to the parties and their counsel, with respect
to the tax consequences to the parties and their shareholders resulting from
the
Merger;
(d) Redemption
of the preferred share purchase rights issued pursuant to that certain Rights
Agreement, dated August11, 2003, in accordance with the provisions of Section
23
of such Agreement; and
(d) Performance
by each party hereto of all its obligations under this Agreement.
Article
VI
Termination
The
Agreement may be terminated at any time before the Effective Date upon the
occurrence of any of the following events:
(a) If
any of the conditions set forth in Article V are not fulfilled within a
reasonable period of time, such reasonable period of time to be determined
by a
majority of the Board of Directors of any of the parties, in their sole and
absolute discretion; or
(b) If
any action, suit, proceeding or claim has been instituted, made or threatened,
relating to the proposed Merger which makes consummation of the Merger
inadvisable in the opinion of a majority of the Board of Directors of any
of the
parties; or
(c) If
for any reason consummation of the Merger is inadvisable in the opinion of
a
majority of the Board of Directors of any of the parties.
Upon
termination, this Agreement shall be void and of no further effect, and there
shall be no liability by reason of this Agreement or the termination thereof
on
the part of the parties hereto or their respective directors, officers,
employees, agents or shareholders.
Article
VII
Expenses
All
of
the expenses of the Merger, including filing fees, printing and mailing costs,
and accountants’ fees and legal fees (except for expenses, if any, incurred by
the shareholders of Bank or Holding Company) shall be borne by Surviving
Bank or
the Holding Company, as applicable. In the event that the Merger is abandoned
or
terminated for any reason, all such expenses shall be borne by
Bank.
Article
VIII
Amendment,
Modification, Etc.
8.1 Amendment,
Modification, Etc. Bank, Subsidiary and Holding Company, by mutual
consent of their respective Boards of Directors, to the extent permitted
by law,
may amend, modify, supplement and interpret this Agreement in such manner
as may
be mutually agreed upon by them in writing at any time before the Effective
Date
or after adoption thereof by shareholders of Bank, Subsidiary and Holding
Company; provided, however, that no such amendment, modification or supplement
shall change any principal term hereof or the number or kind of shares to
be
issued by Holding Company in exchange for each share of Bank, except by the
affirmative action of such shareholders as required by law.
8.2 Counterparts.
This Agreement may be executed in one or more
counterparts.
8.3 Governing
Laws. This Agreement shall be governed by and construed in accordance
with the laws of California and the performance of the parties hereto and
their
respective duties and obligations hereunder shall be governed by such laws
except as required by applicable provisions of federal law.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in
counterparts by their duly authorized officers as of the date first above
written, pursuant to a resolution of its board of directors, acting by a
majority.
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President
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Secretary
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BANK
OF MARIN
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President
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Secretary
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BANK
OF MARIN MERGER CORP.
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President
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Secretary
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